P.N.Harkauli - (1.) THIS application for revision is directed against the judgment and order passed by the learned Additional Sessions Judge, Ballia.
(2.) THE applicant and four other persons were sent up to stand their trial on charges under Sections 147 and 323/ 149 IPC One of the five accused persons died during the trial. THE learned Assistant Sessions Judge convicted the remainining four accused persons of offences under Sections 147 and 323/149 IPC and sentenced them on those charges. All of them preferred an appeal. THE learned Sessions Judge allowed the appeal of three of them holding that it was not proved that they had taken part in the occurrence. In view of this finding the learned Sessions Judge acquitted the applicant of the charges under Sections 147 and 323/149 IPC. He, however, convicted the applicant of the offence under Section 323 IPC simpliciter on the ground that, though it was not mentioned in the first information report that the applicant had wielded the lathi, the evidence showed that this was so and that the evidence established that it was he who had caused the injury to the victim. Against this judgment and order of the learned Sessions Judge the present revision application has been filed. The learned counsel for the applicant contended that when the applicant was not charged under Section 323 IPC simpliciter and he was only charged under Sec. 147 and 323/149 IPC; it was not open to the learned Sessions! Judge to convert his conviction from one under Section 323/149 IPC to one under Section 323 IPC simpliciter. This contention finds support from the observations of the Supreme Court in Lakhan Mahto v. State of Bihar, AIR 1966 SC 1742 which runs as follows :- "In Barendra Kumar Ghose v. Emperor, AIR 1925 PC 1, Lord Sumner dealt with the argument that if Section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then Secs. 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, Sec. 149 was certainly not otiose, for in any case it) created a specific and distinct offence. It postulated an assembly of five or more persons having a common object, as named in Section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object. Lord Sumner referred, in this connection, to the decision of the Calcutta High Court in Queen v. Sabid Ali, (1873) 11 Beng. LR, 347 (FB). The observation of Lord, Sumner was quoted with approval by this Court in Nanak Chand v. State of Punjab, AIR 1955 SC 274, in which it was pointed out that by framing a charge under Sec. 302 read with Sec. 149, Indian Penal Code against the appellant it was not charging the appellant with the offence of murder and to convict him for murder and sentence him under Sec. 302 of the Indian Penal Code was to convict him of an offence with which he had not been charged. It was accordingly held that the conviction of the appellant under Sec. 302 IPC was illegal. The same view has been reiterated by this Court in a latter case in Suraj Pal v. State of Uttar Pradesh, 1955 AWR 365." Accordingly, it must be held that the conviction of the applicant under Section 323 IPC simpliciter was illegal.
(3.) THE application is allowed and the conviction and sentence of the applicant are set aside. Application allowed.;